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Dear Rex Murphy: context and history count

on Oct 22, 2013 at 11:44 AM Posted by Anna Stanley

Rex Murphy’s commentary in the National Post on recent Mi’kmaq protests is misinformed and demonstrates a profound ignorance of our history.

In his article, he suggests that the behaviour of Mi’kmaq protestors at Elsipogtog First Nation on October 17th constitutes a “rude dismissal of Canada’s generosity”. Even more “raw and provocative an insult”, he argues, is the suggestion that this and other protests (including the Caledonia blockade and the Idle No More movement) are legitimate struggles against oppression. Indeed, what Mr. Murphy appears to find anathema are the co-existence, today, of Indigenous struggles for self-determination and assertions of sovereignty and existing oppression and racism.

Today's Canada, Murphy states, “is a very different place from the Canadian past”: there is “a great benign difference between the two” and to suggest otherwise is “willful blindness and reckless distortion” cooked up by academics and intellectuals. His reasoning here appears to be that federal governments, foremost amongst them Mr. Harper's government, have bent over backwards to address “native grievances” (they apologized for residential schools didn’t they? And have thrown billions at youth suicide epidemics and drug addictions in places like Rankin inlet) and that Canadians generally feel “genuine shame” that conditions Indigenous peoples live with are “as they are”. Canadians, he suggests, “wish better for their co-citizens” and are “intensely eager to do the right thing by them.” To suggest otherwise by using words like 'settler society' or 'colonialism' is counterproductive and insulting to “the immense openness and goodwill of the Canadian Citizenry.”

There are several flaws to Murphy’s argument; by far the worst are lack of evidence, selective reporting, and historical revisionism. Since he uses the recent Mi’kmaq protest to build momentum for his broader argument, I begin there as well.

First, Mr. Murphy’s reporting and analysis of the protest event is poorly researched and inaccurate. The result is a purely rhetorical and polarized framing of the event. Why, for instance, is there no mention of the approximately 200 RCMP officers, some of whom were fully armed with assault rifles and riot gear, or those officers dressed in SWAT gear who raided (with guns drawn) the blockade at sunrise? Why is there no mention of the subsequent use of pepper spray, of rubber bullets, and of hosing (of high pressure water) to subdue Rex Murphy’s “mob” of mainly elders, women and children, as well as men. While none of this information excuses violence (burning cars, shooting guns—none of which have been proven to have been done by the Mi’kmaq protestors, though this is taken as fact) on either side, it most certainly complicates the story.

Second, accounts of the chronology of events are far from clear. We have heard at length from RCMP officers reading from written statements, created after the fact, about how they responded to what they perceived as an increasingly violent threat, but it is not clear based on media and witness accounts who fired the first (or all) shots, why and under what conditions the RCMP decided to enforce the (provincial) injunction by crawling, commando-style, through a ditch on the side of the road near the blockade in the predawn dark, who set vehicles on fire (and when), and whether any of the firearms within the protestors' encampment had actually been fired.

Starting to sound like Ipperwash?

Third, in Rex Murphy’s account, we hear nothing of the months of peaceful protest, letter writing, community meetings, requests for consultation, and phone calls that preceded the blockade in which the Mi’kmaq attempted to make their concerns about fracking on their unceded land heard. These actions, by the way, communicated concerns about environmental contamination, fears about water pollution, and frustration over the lack of consultation with the company or governments. Nor is there mention of the injunction, or the RCMP decision to enforce it.

Which brings me to the injunction, and, to history. Pay attention, Rex: Indigenous peoples in Canada signed treaties with the federal Crown. Federal courts, including the Supreme Court of Canada, as well as the Canadian Constitution Act require that treaty rights (including the duty to consult and accommodate when these rights are potentially infringed upon) and Aboriginal title (where a treaty has not been signed, or as in the case of the New Brunswick Mi’kmaq where the treaty is a peace and friendship treaty and does not involve any ceding of land to the Dominion of Canada) be respected. There also exists, as upheld in the courts and spelled out in the Constitution Act, a fiduciary duty on behalf of the Crown to respect and accommodate Aboriginal and treaty rights (these include rights to use lands and resources “unmolested”, as they did before the treaties).

So when a First Nation, as was here the case, is told by the New Brunswick government that they have given a license to a private company (SNW) to explore approximately one million hectares of unceded Mi’kmaq territory for shale gas exploration, and when federal and provincial governments as well as SNW ignore requests for consultation (really a federal fiduciary responsibility) and don’t even notify the Mi’kmaq of entry onto their land, it is hardly surprising that they protest. Nor is it surprising that when their requests for consultation are unrequited, they turn to civil disobedience. After several months of activities described above, the Mi’kmaq blockaded a road leading to shale gas exploration equipment owned by SNW. A provincial court then issued an injunction in favor of SNW making the Mi’kmaq blockade on un-ceded Indigenous lands illegal. A move whose dubious constitutional legality was raised yesterday, when a different New Brunswick judge ruled against an indefinite extension to the SNW injunction and raised serious questions about the original injunction, RCMP raids and subsequent charges.

The broader context for this struggle is, of course, connected to the federal government’s plans to facilitate and advance resource extraction and ensure appropriate conditions to attract investment in natural resources (not to mention similar plans by the New Brunswick government to aggressively pursue oil and gas development). Such measures have included the evisceration of environmental legislation and the environmental governance regime write large to the extent that their duty to respect and accommodate Aboriginal and treaty rights, as well as to consult, have all but been eliminated.

On balance, the dubious constitutional legality, abrogation of federal fiduciary responsibility to Indigenous peoples, clear trampling of Indigenous rights (to be consulted, and accommodated at the very least), and the use of federal force to enforce the rights of a private company over an Indigenous group with intact land title protected by the country’s constitution, puts the lie to Mr. Murphy’s assertion that the colonial past is no longer with us in the present.

Anna Stanley is faculty at the National University of Ireland, Galway, where she teaches and does research in political ecology and environmental justice. She is currently Visiting Professor at Ryerson University, Toronto in Politics and Public Administration and has worked with a number of First Nations and First Nation advocacy organizations as a policy analyst.